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STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS
COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE
[Recorded by Electronic Apparatus]
Tuesday, April 3, 2001
The Chair (Mr. Andy Scott (Fredericton, Lib.)): I call to order this meeting of the Standing Committee on Justice and Human Rights.
Today we'll be receiving witnesses on Bill C-12, an act to amend the Judges Act and to amend other acts in consequence.
We have, from the Office of the Commissioner for Federal Judicial Affairs, Denis Guay and Wayne Osborne, and from the Judicial Compensation and Benefits Commission, Richard Drouin, Frederick Gorbet, and Deborah Lapierre.
I understand each has a brief statement to make, after which we'll receive questions from the committee. Is that correct? Have you decided which of you would like to be first?
Mr. Richard Drouin (Chairperson, Judicial Compensation and Benefits Commission): Thank you, Mr. Chairman.
My name is Richard Drouin and I am the Chairperson of the Judicial Compensation and Benefits Commission. To refresh the committee's memory, the Commission that I oversee was created in September 1999. Public hearings were, of course, held in February and March of 2000.
We issued a report dated May 31, 2000, in accordance with the Judges Act. This unanimous report was signed by the three commissioners, Ms. Eleanore Cronk, Mr. Gorbet and myself. Since then, Ms. Cronk has resigned her seat on the Commission for personal reasons, which explains why Mr. Gorbet and myself are here today.
At this time I would like to offer, after the intervention of Mr. Guay, to answer any questions you might have.
The Chair: Thank you, Mr. Drouin.
Mr. Denis Guay (Acting Commissioner, Office of the Commissioner for Federal Judicial Affairs): I do not have a brief, Mr. Chairman. I would, however, like to preface my remarks.
The Commissioner for Federal Judicial Affairs is responsible for the administration of Part I of the Judges Act, which provides for compensation and payment of benefits to federal superior justices.
Accordingly, our Office will be responsible for applying Bill C-12 once it has been passed by Parliament.
Thank you very much. I'm prepared to answer any questions.
The Chair: Thank you, Mr. Guay.
First question goes to Mr. Sorenson. You have seven minutes.
Mr. Kevin Sorenson (Crowfoot, Canadian Alliance): Thank you for coming today.
I'm a new member of Parliament here. When we got this bill, I was reminded of Jimmy Carter, who said that with any bill that came forward, he would never vote unless he had read through the entire thing. I thought, as I picked up this bill, you've got to be kidding. I got into it, and it's really nothing other than salary packages, compensation, and benefits. But when we got into the final thing—and this is more just a question for my own benefit—and came to the annuities.... I'll just read a little concerning a couple of the areas that raised questions for me.
First, subsection 44(3) of the Judges Act reads:
No annuity shall be granted under this section to
the surviving spouse of a judge if at the date of the
death of the judge the surviving spouse was in receipt
of an annuity granted under any of the Acts mentioned
in subsection 2.
I don't know if you have the original Judges Act there. Clause 22 in the new bill repeals that. Therefore, if I have this right, a judge married to another judge may collect their own annuity and that of their spouse upon the spouse's death. If the judge then marries for a second time, and they marry a judge, and that spouse dies, they may also collect that deceased spouse's annuity. In other words, potentially a widowed judge, as long as his strength and power holds up and he keeps remarrying, can collect an infinite number of annuities. Is that in line with other public service benefits?
Mr. Richard Drouin: That's what we understand. If you take, for instance, a judge married to a member of Parliament or a civil servant, it would be the same situation as the one proposed in the bill.
Mr. Kevin Sorenson: Where they would be collecting three annuities.
Mr. Richard Drouin: Well, three if, as you say—
Mr. Kevin Sorenson: Their strength held up.
Mr. Richard Drouin: —they've got the strength. It might be worth it, you know.
Mr. Kevin Sorenson: If this thing is now added, was this then not the case?
Mr. Richard Drouin: It was not the case. We felt that it was contrary—and we've been advised on that—to what we see elsewhere, either in the public service or in the private world.
In other words, you cannot, because of your personal situation, be penalized because you marry someone who has a pension fund. And in the civil service, federal or provincial, we have not seen instances where you would be precluded from collecting additional annuities.
Mr. Kevin Sorenson: All right. That was just for my own interest, because I wasn't sure, if they didn't do it before, why they started it now.
In the bill, proposed subsection 43.1(1) says:
The Governor in Council shall grant to a judge
who has attained the age of fifty-five years, who has
continued in judicial office for at least ten years and
who elects early retirement, at the option of the
judge, an immediate annuity or a deferred annuity,
calculated in accordance with this section.
Again, are other public servants granted that same benefit? That is, can they be granted at age 55, after ten years of continuous service, an immediate or deferred annuity if they elect early retirement? And is it based on the same calculations? If you go down to the calculations, proposed subsections 43.1(2) and (3), it goes through the whole formula. It gives the calculation as to how that is granted. Are other public servants granted the same benefit?
Mr. Frederick Gorbet (Commissioner, Judicial Compensation and Benefits Commission): In general, yes they are, sir. In almost every pension plan that exists there are provisions for pensions to be earned as you actually go through employment. They vest, and you have the right to early retirement under certain conditions.
The judge's annuity plan was an exception, in the sense that at the moment judges are not entitled to any pension unless they work 15 years. If a judge is appointed to the bench and leaves it after working 15 years less a day, there is no pension entitlement at all.
When we constructed the recommendations on salary, we took the point of view that the philosophy ought to be one of total compensation and the pension, because it is a good pension, should matter. We felt it was desirable to address this issue, that there was no way to get any pension unless you actually served the full 15 years, which was, as we understood it, unique in pension arrangements. That's why we introduced this provision. And it is modelled very much on the public service provisions.
The Chair: Monsieur Bellehumeur.
Mr. Michel Bellehumeur (Berthier—Montcalm, BQ): I'd like to thank you as well for coming here to talk to us about your work.
First though, I'd like to apologize on behalf of those who were late. I think we have a duty to arrive on time.
I've read your report and overall, I agree with your findings. The Canadian Bar Association maintains - and I agree with them - that your recommendations will serve as an incentive for recruiting highly qualified candidates. I don't know whether you looked at this in the course of your study, but do you think the method of appointing judges favours the recruitment of highly qualified and impartial judges? Now that compensation levels are more respectable, did you give any thought to the appointment method? Don't you think the method used to appoint judges today in 2001, the 21st century, is somewhat archaic?
Mr. Richard Drouin: The mandate of the commission did not include looking into how judges are appointed. Consequently, in answer to your question, we did not consider this issue.
Mr. Michel Bellehumeur: It's not a trick question. Had you considered this, would the end result, Bill C-12, not have contained much stricter provisions respecting the independence of judges, their qualifications and lack of political affiliation?
Perhaps this was not part of your mandate, but you did compare salaries, appointments and various other things. You did draw a number of comparisons. While not specifically included in your mandate, don't you think that you should eventually examine this question if you are to achieve your objective, namely the separation of executive and judiciary powers?
Mr. Richard Drouin: Mr. Chairman, the appointment process is political. Reviewing the process was not part of our mandate. We gathered a number of facts and observed that the members of Canada's judiciary are very highly qualified. However, we did not go any further than this because we did not want to interfere in any way in the process employed for appointing members of the federal judiciary.
Mr. Michel Bellehumeur: I have one final comment. When I see that the most inept hockey player earns twice as much as the Prime Minister and Chief Justice of the Supreme Court combined, I realize that there is nothing outlandish about the compensation levels proposed in Bill C-12.
I have one last question for you, Mr. Guay. Since you will be responsible for applying the terms of Bill C-12, can you say that you are comfortable with the proposed legislation?
Mr. Denis Guay: I'm very comfortable with the bill and I don't foresee any problems applying its terms.
Mr. Michel Bellehumeur: Thank you.
The Chair: Mr. McKay.
Mr. John McKay (Scarborough East, Lib.): I find it hard to believe that I'm in agreement with Mr. Bellehumeur. I'll have to go out and give myself a shake.
On that line of questioning, if a Supreme Court justice was recruited from a senior law firm in downtown Toronto, Montreal, or Vancouver, what kind of salary cut would they be taking?
Mr. Richard Drouin: In our studies we have specifically had this matter dealt with. If you take in the largest metropolitan areas, the income of private practitioners, according to Revenue Canada.... If I take, for instance, Toronto, in the 75th percentile, which was the comparator we chose, a judge would be 49% below that figure as remuneration. But when you take the total remuneration, which includes the judge's salary adjusted for the benefit of the annuities, then it would bring it down to minus 22% for Toronto. If I take Calgary, without the pension it would be minus 54%, and with the pension it would be minus 28%.
You mentioned the Supreme Court, but these comparisons relate to the puisne judges of the first level of judges.
Mr. John McKay: So it would be a pretty substantial financial sacrifice in order to be able to take that on.
Mr. Richard Drouin: Yes.
Mr. John McKay: I just wanted to establish that. That's really the only issue I had.
The Chair: Are there any other questions on this side? If not, we'll go to Mr. Toews.
Mr. Vic Toews (Provencher, Canadian Alliance): Following on Mr. Bellehumeur's question, I just want to make a comment. It strikes me as strange that this report attempts to achieve the task of ensuring that we attract the highest-quality candidates, yet the nomination process doesn't ensure we get the best candidates. It doesn't really matter what you're attempting to achieve. The political process by which we appoint judges undermines the good work you're trying to do. I just leave that comment with you.
Mr. McKay asked you what cut a senior lawyer from downtown Toronto would take. Have you done that kind of comparison with places such as Steinbach, Winkler, Prince George, Saskatoon, and Charlottetown?
Mr. Richard Drouin: Yes, we have done comparisons. They're also in the report.
Mr. Vic Toews: What are your conclusions in that respect?
Mr. Richard Drouin: We did it by province. If you take Prince Edward Island, for instance, the salary would be about minus 4% compared with the average lawyer in the 75th percentile.
Mr. Vic Toews: Let's say rural Manitoba.
Mr. Richard Drouin: For Manitoba it's minus 2%. Just to give you the example, it's $176,000 against, at that time, $178,000. We're talking of 1997 figures.
Mr. Vic Toews: Do you take into account such things as the security of tenure that judges have as opposed to the tenure that a private lawyer would have with his or her firm?
Mr. Richard Drouin: Actually, the figures I just gave you are comparisons from salary to salary. If you include the judicial annuity, then the figures change. For instance, in Manitoba as a whole, if you include the pension plan, it would be plus 51%.
Mr. Vic Toews: Thank you.
The Chair: Mr. Sorenson, I cut you off the last time. Do you have another question?
Mr. Kevin Sorenson: Going back to what Mr. McKay said, I would say that he draws the picture of the lawyer taking the big cut to become a judge. Really, that's the way a lot of public service is. When you become involved in public service, there's no guarantee that you're all of a sudden going to take a step up in a wage package. Many times you do compromise on that.
If I remember correctly, when we talked about this in the House, originally the figure of 26.3% was proposed for the judges.
Mr. Richard Drouin: That is what was asked for by the judiciary.
Mr. Kevin Sorenson: So in your coming to 11.3%, 11.9%, or something, you felt that was in line with the public service. Do you think that would take it to what the judge level should be, or was your main consideration that it be in line with the public service?
Mr. Richard Drouin: Let's put it this way: there's no hard formula on this, no formule magique.
We use two comparators. One is the most senior level of deputy ministers in the public service, which are referred to in our report as DM-3s. The other comparator was what we just discussed in answer to a few questions here, a comparison with the revenue for the lawyers in private law firms in various areas of the country.
A third one was suggested, which we turned down. It probably would have been more to the advantage of the judges. It was a comparison with other jurisdictions, such as England, Australia, and New Zealand.
Coming back to your question, we did make a very thorough study of a comparison with DM-3s, the high-level deputy ministers in the government. If you look at the comparison at the time of our study, a Superior Court judge was at $179,000, and the midpoint of a DM-3 was at $188,000 to $250,000.
Since then, and just recently as a matter of fact, there was a further increase given by the government to the DM-3s, bringing them up to the level of a midpoint of $205,000. When I say the midpoint, I mean the low part is $186,000 and the high part is $219,000.
Our suggestion, of course, is to bring up the level of the judges as of the same date, which is April 1, 2000, to a salary of $198,000. So with the latest increase given to the deputy ministers at level 3, it puts our findings in a very sound position.
Mr. Kevin Sorenson: Is there a difference between midpoint and average?
Mr. Richard Drouin: You take the high and the low and divide by two. The midpoint is in a scale, it's really not an average. The midpoint is at the half of the addition of both figures.
The Chair: Mr. McKay.
Mr. John McKay: Did you do a comparison with, say, federally appointed American judges?
Mr. Richard Drouin: I would just say that we were given figures on American judges, those in the United Kingdom, and, I think, those in New Zealand. We didn't accept them in our study because it would have meant for us to go into further study to make sure the figures we had could correlate with the job description in whatever the level. It would have meant a lot of work and probably a lot of travelling for us. We insisted on trying to do it in the Canadian way, making sure we got good comparators in Canada to ensure the judges fair treatment.
Mr. John McKay: I have a final question. The researcher was interested in knowing what the provinces contribute to the overall running of federal judges' offices.
Mr. Richard Drouin: I wouldn't be able to give you a figure on that.
I wonder if Mr. Guay would have information on that.
Mr. Denis Guay: The salaries of federally appointed judges are paid by the federal government. The province will provide the offices, the secretary, and the staff for the judge. But the salary, the annuity, and the allocation are paid by the federal government. All the rest—the administrative assistants, the secretaries, and the offices—would be paid by the province.
The Chair: Thank you very much to both sets of witnesses. We appreciate your patience and your being with us today.
Mr. Ian Mackenzie (Counsel, Judicial Affairs, Department of Justice): I'm Ian Mackenzie, from the Department of Justice.
Ms. Karen Cuddy (Counsel, Judicial Affairs, Department of Justice): I'm Karen Cuddy, from the Department of Justice.
Ms. Judith Bellis (Senior General Counsel, Judicial Affairs, Department of Justice): I'm Judith Bellis. I head judicial affairs in the policy sector at the Department of Justice.
Ms. Louise Panet-Raymond (Counsel, Judicial Affairs, Department of Justice): My name is Louise Panet-Raymond. I'm also part of the judicial affairs unit.
The Chair: I think we recognize the next gentleman.
Mr. Steve McCleave (Actuarial Assistant, Office of the Chief Actuary, Office of the Superintendent of Financial Institutions): I'm Steve McCleave from the Office of the Chief Actuary within the Office of the Superintendent of Financial Institutions.
The Chair: Thank you very much.
As members are aware, you've been advised by notice that we will now proceed to clause-by-clause consideration of Bill C-12.
I believe I can expedite this by posing the first question.
Shall clauses 1 through 11 carry?
(Clauses 1 to 11 inclusive agreed to)
(On clause 12)
The Chair: Mr. Maloney.
Mr. John Maloney (Erie—Lincoln, Lib.): I have a housekeeping amendment, Mr. Chair, if I could explain it to you. It's a revision to proposed subparagraph 20(d)(ii). This clause establishes salaries for the justices of Alberta's Court of Queen's Bench for the period April 1, 2001, ending March 31, 2002.
The English text of the provision states that the salary is to be $200,000 plus $2,000 and the annual adjustment calculated under subsection 25(1). We would request that the words “plus $2000” be deleted. These words are a typographical error, as evidenced by the fact that the French text does not reflect them. The salary for this period is only $200,000 plus the annual adjustment calculated under subsection 25(1).
The Chair: You've heard the amendment.
Mr. Michel Bellehumeur: I don't quite understand. The amendment reads: “en supprimant les termes suivants à la ligne 9, page 25”. In the French version, this would correspond to paragraph (iii). Nor does line 9 correspond to “pour la période allant du 1er avril”. Shouldn't the reference be to lines 10, 11 and 12, that is line 12 of page 25?
The Chair: Madame Panet-Raymond.
Ms. Louise Panet-Raymond: All I can tell you is that the technical amendments were made using our copy of the bill. That's why there may be a problem with the pagination. The amendment is in the English version only, if I'm not mistaken. You can disregard the French version.
Mr. Michel Bellehumeur: However, the following is noted in the French version: “augmentée de 2 000$”.
The Chair: Mr. Bellehumeur, I think that is actually a French translation of an amendment to the English version, and it really does not refer to the French version of the bill.
Is that correct?
That's what it is, Michel.
Mr. Michel Bellehumeur: Could someone kindly tell me...
The Clerk of the Committee: Mr. Bellehumeur, these words are deleted in the English version. There are no changes to the French version.
The Chair: That's what I just said. What you're looking at is simply a translation of an amendment to the English version. It's not an amendment to the French version.
(Amendment agreed to—See Minutes of Proceedings)
(Clause 12 as amended agreed to)
(Clauses 13 to 22 inclusive agreed to)
(On clause 23)
The Chair: Mr. Maloney.
Mr. John Maloney: I have another technical or housekeeping amendment. Referring to clause 23, proposed subsection 44.01(6), that clause allows judges currently in receipt of an annuity to elect an enhanced annuity for their survivor.
As presently worded, that proposed subsection provides that a retired judge's election will take effect “on that day”. However, the reference to “that day” is potentially ambiguous, because it may refer to the date that the section comes into force, or it may refer to the date that the judge makes the election in accordance with the regulations.
Therefore, to remove this ambiguity, we propose to replace “that day” with “the day that this section comes into force”.
The Chair: Mr. Bellehumeur.
Mr. Michel Bellehumeur: Again, I'm not certain whether I'm the one who is mistaken, but with the amendment, the French version would read as follows:
(6) Le juge prestataire d'une pension à la date d'entrée en vigueur
du présent article peut effectuer son choix en vertu des
règlements, le choix prenant effet à la date d'entrée en vigueur du
The French is a little awkward. What was the problem with “le choix prenant effet à cette date”? I preferred that version.
Ms. Louise Panet-Raymond: Mr. Chairman, if I could interject, the date here is very ambiguous in the case of judges who receive pension benefits. It's difficult to tell whether the date is the date on which this section takes effect, or the date on which the choice can be made. There are in fact two dates. The amendment was necessary in order to clear up any ambiguity. I agree that the French may be a little awkward, but legislation never reads like a novel.
Mr. Michel Bellehumeur: I realize that. I'm a lawyer and I've practised long enough to know that, but I've seen better worded provisions. It's not too big of a problem. In any event, although the department may be satisfied, I'm not. I'm not happy with the French.
(Amendment agreed to)
(Clause 23 as amended agreed to)
(Clauses 24 to 27 inclusive agreed to)
The Chair: Shall the title carry?
Some hon. members: Agreed.
The Chair: Shall the bill carry?
Some hon. members: Agreed.
The Chair: Shall I report the bill as amended to the House?
Some hon. members: Agreed.
The Chair: Thank you very much. The meeting is adjourned.